EPA Grants Itself Power To Regulate Ponds, Ditches, Puddles

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Michael Bastasch DCNF Managing Editor
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The EPA has released its Waters of the United States (WOTUS) rule critics say would allow the agency to regulate waterways previously not under federal jurisdiction, including puddles, ditches and isolated wetlands.

Republicans, farmers and industrial groups have called the rule an EPA “power grab” because it extends the agency’s powers to new heights. Environmentalists and the Obama administration, however, argue the WOTUS rule is necessary for protecting water quality.

No matter how you spin it, the EPA’s WOTUS rule does expand the agency’s authority, and creates new avenues for environmental groups to sue projects they want to stop from moving forward.

“The administration’s decree to unilaterally expand federal authority is a raw and tyrannical power grab that will crush jobs,” House Speaker John Boehner said in a statement.

“Despite their assurances, it appears that EPA and the U.S. Army Corps of Engineers have failed to keep their promises to Congress and the American people,” echoed Oklahoma Sen. Jim Inhofe. “In fact, instead of fixing the overreach in the proposed rule, remarkably, EPA has made it even broader.”

Farmers and industry groups worry the new WOTUS rule will expand EPA reach over isolated wetlands, ponds and ditches that have a “significant nexus” to navigable waters — a vague standard employed by the EPA to regulate bodies of water.

This could add another layer of permitting for industries and homeowners as well as more uncertainty caused by the expanded federal role in regulating bodies of water.

“Rather than clarifying the Clean Water Act, today’s ‘interpretive’ guideline from the EPA called the ‘Waters of the United States’ rule entrenches the confused, case-by-case ‘significant nexus’ approach employed by the EPA and USACE,” William Yeatman, a policy analyst at the free-market Competitive Enterprise Institute said in an emailed statement.

But the EPA says its new rule is based on more than 1,200 peer-reviewed scientific studies and “clearly defines” what sources of water the agency now has jurisdiction over. The new WOTUS rule is meant to clear up confusion in the wake of two Supreme Court decisions over federal control of waters, according to the agency.

EPA chief Gina McCarthy even authored a blog post telling farmers that “planting, harvesting, and moving livestock across streams have long been exempt from Clean Water Act regulation; the Clean Water Rule doesn’t change that.”

“The final rule doesn’t create any new permitting requirements for agriculture, maintains all previous exemptions and exclusions, and even adds exclusions for features like artificial lakes and ponds, water-filled depressions from construction, and grass swales—all to make clear our goal is to stay out of agriculture’s way,” McCarthy wrote.

“The rule, for example, is meant to clarify that federal agencies won’t regulate features like intermittent waterways or wetlands that don’t connect to a larger body of water,” she said. “The rule also wouldn’t affect artificial lakes and ponds, grass swales and depressions from construction and other activity that fill with water.”

The EPA further clarifies its only applies to tributaries wit “physical features of flowing water – a bed, bank, and ordinary high water mark.” But agency efforts to ease agriculture and industry concerns seem to have achieved little.

“What’s the point of muddying the (interpretive) waters?” Yeatman asked. “The answer is that a federal government intent on expanding its jurisdiction welcomes ambiguity, because blurry lines are more easily crossed than definitive boundaries. In this fashion, today’s rule codifies uncertainty, which is the opposite of what a clarifying rule is supposed to do.”

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